Smt K.Asha Rani

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IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS: KURNOOL

Present: Smt K.Asha Rani

Judicial Magistrate of I Class, Kurnool

Thursday, the 27 th day of December, 2018

Calendar Case No.368/2015

Between:

State: Rep., by Inspector of Police, Kurnool IV town Police Station.

... Complainant.

-VS- 1.Papa Narasimhaiah, age 67 yrs, S/o. Papa Venkataswamy, R/o.H.No.18-100A-68, Sreenivasa Cloth store, Kurnool town. Caste:- Vysya-Hindu-Indian

2. Papa Venkataswamy, age 40 yrs, S/o. P.Narasimhaiah, R/o. H.No.18-100A-68, Sreenivasa Cloth Store, Kurnool town. Caste:-Vysysa- Hindu-Indian.

The case against A1 is abated. …. Accused

This case coming this day before me for final hearing in the presence of learned Sr.A.P.P for prosecution and of Sri S.Ghouse Basha Advocate for accused and having perused the material this court delivered the following:

:JUDGMENT::

1. The Inspector of Police, Kurnool IV Town Police Station filed charge sheet in

Cr.No.132/2014 under Section 420,506 r/w 34 of Indian Penal Code against the Accused.

2. The brief facts of the prosecution case are as follows:

(a) The defacto complainant/ L.W.1 B.Bheemaiah Setty is resident of Kothapeta, Dhone town. He lives by doing cloth business and running granite factory. The accused A1 approached him and appraised him that he is doing business in the name and style of Sri Sai Traders in

Kurnool town and also he would register house site land to an extent of 4 cents situated in the outskirts of Kurnool town beside Kurnool-Bellary road, to each scheme member if he pays him monthly subscription of an amount of Rs.50/- for a period of 36 months. Believing the words of

A1, the complainant joined in the scheme of Accused and became member in the said scheme during the year 1970 and paid Rs.100/- for two house plots. Thereafter, he asked A1 to execute registered sale deed concerning above house plots. Then A1 asked him to approach one

Krishnamurthy who will execute registered sale deed concerning the house plots to the 2 subscribers of Dhone, Kurnool on his behalf as the said Krishnamurthy is holding GPA in his favour. Thereupon, he including other subscribers from Dhone area enquired about said

Krishnamurthy but his whereabouts were not known. Again he approached A1 informing that said Krishnamurthy was unavailable in Kurnool town. A1 kept postponing registration of said plots for a period of 10 years on various pretexts.

(b) In the year 2012, while LW.6 Ranga Reddy was cleaning the plot, A1 and his son (A2) came and objected from cleaning the plot saying that he is the owner of the entire Sai

Traders Plots, the Krishnamurthy is his clerk, he has no right to execute register sale deed. For that LW.6 Ranga Reddy showed receipts which were paid by him for house site plot and also he warned them he would file a criminal case against them for not registering house site even after receiving scheme subscription amount. Due to fear A1 himself executed sale deed in favour of

L.W.6 Ranga Reddy. On verification of Encumbrance Certificate, he found plots 7, 22, 50, 51 20, 66, 120 situated in Sy.No.77/81/187/a, 88/b, and 89/2 on the name of Sai Krishna who is grandson of A1 vide documents No.6534/1970.

(c) On knowing the same, during the year 2013, L.W.1 B.Bheemaiah along with his son LW.2 B.Suresh Kumar approached A1 to register house site plots and A1 demanded cash of

Rs.1,00,000/- for registration of plots but they could only pay Rs.50,000/- to A1. After receiving cash of Rs.50,000/-, A1 requested them to come to Rajiv Gruhakalpa opposite to Sai Traders on

Peddapadu road on 08.08.2013 for registration of two plots. Accordingly, on 8.8.2013, he, PW.2 and PW.3, LW.4 Amarnath went to plots situated near Rajivgruhakalpa on Bellary road, Kurnool.

A1 and A2 came there by 4.00 pm along with four unknown persons and stated that they would not register the said two plots and also threatened them with dire consequences. Then they ran away from that place due to fear and went to Dhone of their native place. Later they went to

Kurnool IV town P.S. to give complaint against accused but police did not take any action.

Subsequently, he filed private complaint before this court for cheating and threatening him.

(d). Based on the court endorsed complaint of B.Bheemaiah (LW.1), LW.7

M.C.Ranganayakulu, Inspector of police of Kurnool IV town P.S. registered a case in

Cr.No.132/2014 for offence U/sec. 420, 506 of Indian Penal Code against the Accused.

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(e) The accused A1 and A2 got anticipatory bail and surrendered before the Hon’ble

Judl. Magistrate of First Class Court, Kurnool. After completion of investigation Police filed charge sheet.

3. On perusal of the charge sheet and other documents filed by the police, the court had taken cognizance of offence under section 420, 506 r/w 34 of IPC against accused.

4. On appearance of the accused, copies of this case were furnished to him as contemplated under Section 207 Criminal Procedure Code.

5. The accused A2 was examined Under Section 239 Criminal Procedure Code and he denied commission of offence. He was heard before framing charges. Charge under Section 420,506 r/w 34 of Indian Penal Code against the Accused are framed and the contents of the charge were read over, explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.

6. During the course of trial, the Prosecution examined P.W.1 to PW.6, got Ex.P1 to Ex.P.4 marked. The evidence of LW.4 K.Amarnath was closed on memo filed by prosecution.

7. After completion of Prosecution evidence the accused A2 was examined Under

Section 313 Criminal Procedure Code. The substance of incriminating material appearing in the prosecution evidence was read over and explained to the accused in Telugu, he denied the same from being true and reported there is no evidence on his behalf.

8. The learned APP argued that the evidence of PW.1 to PW.6 are corroborating each other on material particulars. Hence, their evidence is corroborative and consistent. Therefore, their evidence is sufficient to substantiate charges U/sec. 420,506 r/w 34 of Indian Penal Code against the accused, hence he prayed to convict the accused as above offence.

9. The defence had contended that one Somisetty Venkata Ramaiah had looked after all the subscriptions made to Sri Sai Traders which was a partnership firm and the scheme was run from 1970 to 1973 for three years. A1 was managing partner of the firm. They had not disputed about PW1 being subscriber of Sri Sai Traders but only contended that PW.1 had not paid entire subscription for which the plots were not registered in his name as he paid amount in 4 the name of his cloth stores but not on individual name. Thereafter the partnership business was closed in the year 1973 and final settlement was made regarding unsold plots by paying nominal amount to register unsold plots on A1. SomisettyVenkata Ramaiah one of the partner had actually created all hurddles to Sri Sai Traders. PW.1 had also stated that Somisetty Venkata

Ramaiah is into real estate business and has office at Kurnool. Though PW.1 denied about knowing Somisetty Venkataramaiah as one of the partner in Sri Sai Traders, receipt No. 39 and 40 shows to have been issued by him to PW.1. It is also contended that from March 2006 to

December 2006 said Somisetty Venkataramaiah had sold 80 plots without knowledge of A1.

10. further contended that evidence on record shows no allegation against A2 but only says that he accompanied A1 to scene of offence and there is no specific allegation against A2 either in Ex.P.1 or sec 161 Cr.P.C statement regarding the alleged offence on 08.08.2013, by the date of alleged incident A2 was only 8 years and his date of birth is 24.07.1962 and that to prove whether PW.1 had paid entire subscription amount for 3 years to make him eligible for registration of plots, the subscription register unavailable with A2 and the same is with Sri Sai

Trader partner Sri Somisetty Venkataramaiah and grievance of PW 1 is 40 years old. Hence, he prayed to acquit A2 from the alleged charges as the case against A1 is already abated.

11.Heard oral arguments on both sides, considered the evidence of P.W.1 to PW.6 coupled with Ex.P1 to Ex.P.3 and other material on record.

12. Now the point for determination is:

Whether accused had cheated PW.1 by not registering plots in the name of PW.1 and also threatened PW.1 and PW.2 with dire consequences and whether the prosecution could prove the guilt of accused for offence U/sec. 420, 506 r/w 34 of IPC beyond reasonable doubt?

13. To prove the prosecution case, the prosecution had examined PW.1 to PW. 6 and got

Ex.P.1 to Ex.P4 marked. PW.1 is defacto complainant. PW.2 is son of PW.1. PW.3, PW.4 and

PW.5 are independent witness. PW.6 is IO. The case against accused A1 is abated.

14.The arrayed offence against accused is U/sec. 420, 506 r/w 34 of IPC. For the sake of convenience sections are hereunder reproduced.

420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is 5 signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Section 506 of IPC criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison- ment of either description for a term which may extend to seven years, or with fine, or with both.

15.PW.1 deposed that in the year 1970, A1 came to Dhone and informed that he is running a real estate business in the name and style of Sri Sai Traders in Kurnool town and also informed about the scheme of paying Rs.100/- p.m. to get registered a plot in their names.

Accordingly, PW.1 paid Rs.100/- for two plots for a period of 36 months as per the scheme.

Thereafter, PW.1 asked A1 to execute registered sale deed concerning above house plots. Then

A1 asked PW.1 to approach one Krishnamurthy who will execute registered sale deed concerning the house plots to the subscribers of Dhone, Kurnool on his behalf as the said

Krishnamurthy is holding GPA in his favour. Thereupon, PW.l including other subscribers from

Dhone area enquired about said Krishnamurthy but his whereabouts were not known. Again he approached A1 informing that said Krishnamurthy was unavailable in Kurnool town. A1 kept postponing registration of said plots for a period of 10 years on various pretexts.

16.On 31.07.2013 he along with PW.2 his son approached A1 to register house site plots and A1 demanded cash of Rs.1,00,000/- for registration of plots but they could only pay

Rs.50,000/- to A1. After receiving cash of Rs.50,000/-, A1 requested them to come to Rajiv

Gruhakalpa opposite to Sri Sai Traders on Peddapadu road on 08.08.2013 for registration of two plots. Accordingly, on 8.8.2013, he, PW.2 and PW.3, LW.4 Amarnath went to plots situated near

Rajivgruhakalpa on Bellary road, Kurnool. A1 and A2 came there by 4.00 pm along with four unknown persons and stated that they would not register the said two plots and also threatened them with dire consequences. Then they ran away from that place due to fear and went to Dhone of their native place. Later they went to Kurnool IV town P.S. to give complaint against accused but police did not take any action. Subsequently, he filed private complaint 6

before this court through an advocate. Ex.P.1 is compliant. Ex.P.2 is original bunch of payment

receipts 67 in number. Police examined him.

17.PW.2 son of PW.1 deposed that he was informed by his father PW.1 that he subscribed for two plots with Sri Sai Traders in Kurnool. He was not born when PW.1 started paying subscription. Then his father questioned partners of Sri Sai traders abut registration of plots and they requested him to wait for some time due to pending disputes between them.

Whenever his father used to question partners of Sri Sai Traders. They kept on postponing the registration without any reason. PW.1's friend LW.5 B.Krishnamurthy had also subscribed with

Sri Sai Traders and got registration of the plot through one of the partner of Sri Sai Traders by name Billakanti Krishnamurthy. When they questioned about registration the partners of Sri Sai traders asked them to verify the same from Billakanti Krishnamurhty to whom GPA was given.

On enquiry about whereabouts of Billakanti Krishnamurthy they were not known.

18.When Baisani Krishnamurthy (PW.4) started constructing house in the registered plot, they came to know that Billakanta Krishnamurthy is only a clerk in Sri Sai Traders but owner of

Sri Sai traders is Papa Narasimhaiah (A1). They came to know that inspite of having ownership and power of Attorney, A1 made them to run from nook to corner for registration. Thereafter, panchayat was held in Kurnool IV town PS and they gave complaint to police. On enquiry, they came to know that A1 had registered the plots in the name of his second son by name Papa Sai

Krishna which are to be registered in their names. When they questioned Papa Sai Krishna, he asked Rs.50,000/- for registration and asked them to come after one week. They went to accused after 1 week and accused had taken them to outskirts of Kurnool near radio station wherein A1,

A2 including others criminally intimidated them not to ask for registration again. Fearing them they came back to their houses in Dhone and later gave complaint to police.

19.PW.3 deposed that he knows PW.1 and PW.2 and also other prosecution witnesses including accused. He works as supervisor in Granite factory of PW.1 run in the name and style of Siva Sai Granite Factory. About 5 years back, he accompanied PW.1 and PW.2 to the shop of

A1 in Kurnool and in his presence PW.1 paid Rs.50,000/- to accused towards advance to plot registration and accused assured of clearing the registration process within one week. After one week they three again came to Kurnool and A1 took them to Kodumur road opposite to Rajiv

Gruhakalpa. There they had discussion for one hour, thereafter four or five came with stick to 7 beat them. Then they fearing them went to bus stand. The said persons had criminally intimidated them stating that if they again visit for plot registration they will beat them. Police did not examine him.

20.PW.4 deposed that he knows PW.1 to PW.3 and other prosecution witnesses including accused. He, PW.1 and 8 other persons had subscribed for one scheme run by accused from 1970 and paid 36 installments of each installment cost Rs. 50/- to the tune of Rs.18000/- to accused on their assurance to register a plot in favour of each subscriber. In the year 1988,

Billakanta Krishnamurthy had registered a sale deed in his favour stating that he is GPA holder on behalf of accused. After 10 years he had sold the property to one Ranga Reddy (PW.5) through registered sale deed. While PW.5 was engaged in cleaning the plot, A1 questioned about the rights over the property. Then PW.5 informed that he purchased the same from PW.4 which was sold to PW.4 by GPA holder Billakantha Krishnamurthy but A1 stated that he has no rights over the property. Hence, they held panchayat before elders and the son of A1 by name Sai

Krishna got registered the land in favour of PW.5 and PW.4 attested on the sale deed. Whereas,

PW1 was not given any property for subscription. Police examined him.

21.PW.5 deposed that he knows only PW.4 but does not know PW1 to PW.3 and

L.W.4 K. Amarnath. In the year 2008, he purchased land situated at Bellary road in Sai Nagar layout from PW.4. The said layout was made by A1, Somisetty Venkataramaiah, Billakanta

Krishnamurthy. He got the plot registered in his name. In the year 2012, while he was cleaning the plot, A1 and his son (A2) came and objected from cleaning the plot saying that said plot was sold to PW.4 by one Billakanta Krishnamurthy without any rights over the property. Then he questioned PW.4 about the plot and regarding the obstruction made by accused. PW.4 requested time to clear the rights. Thereafter, A1 and A2 including Sai krisha son of A1 got reduced into writing an agreement relinquishing rights over the disputed property. He came to know that PW.l filed case for not registering plots in his name. Police examined me.

22.PW.6 investigating officer deposed that on 9.4.2014, he received endorsed private complaint from Hon'ble Court filed by PW.1. Basing on the same, he registered a case in

Cr.No.132/2014 for offence U/sec. 420,506 of IPC. He submitted original FIR to Hon'ble Court and all copies to concerned officers. E.P.3 is FIR. On 10.04.2014, he secured presence of PW.1 to

PW3 and LW.4 K.Amarnath and examined them and recorded their sec.161Cr.P.C. statements.

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He visited scene of offence situated beside Rajivgruhakalpa near Bellary chowrasta and examined scene of offence, prepared rough sketch. Ex.P.4 is Rough sketch. On 11.04.2014, he secured PW4 and PW.5 and recorded their sec.161 Cr.P.C. statements. On 19.04.2014, the

Hon'ble IV Additional District Judge, Kurnool granted anticipatory bail to A1 and A2 and they

produced sureties before Judicial Magistrate of First Class, Kurnool and were enlarged on bail.

He received documents concerning the case along with private complaint. On completion of investigation, he filed charge sheet.

23.On perusal of material on record and considering evidence of PW1 to PW.5, coupled with

Ex.P.1 and Ex.P.2, it can be seen that initially PW.1 filed private complaint before this court on 22.08.2013 concerning the disputes regarding registration of plots in his favour for the subscription he made to Sri Sai Traders owned by A1. PW.1 had made two subscriptions in the name of shops run in the name and style of M/s. Sri Venkata Chalapahti Cloth Stores and Madras

Emporium at Dhone as its proprietor. But A1 failed to register those two plots in the name of

P.W.1 and kept on postponing the registration on some or the other pretext.

24.On 31.07.2013, PW.1 again paid Rs.50,000/- towards registration charges of two plots on the demand made by A1. Thereafter, A1 collected photographs and identity proof from

PW1 and asked him to Kurnool on 08.08.2013 to show house sites to him before registering.

Accordingly, when PW1 along with his relative LW.4 K.Amarnath and PW.3 came to Kurnool

A1 and A2 including two others took them to open fields on Kurnool to Kodumur road and accused including those other persons threatened them by showing daggers saying that no house plots are there and they would kill them and bury their dead bodies in the fields itself if they again ask for house sites. Hence, they approached police to give complaint but when police refused to register the case, PW.l filed private complaint before this court for offence U/sec. 420 of IPC against A1 and for offence U/sec. 506 r/w 34 of IPC against A2 and two others.

Thereafter, the complaint was forwarded to S.H.O. Kurnool IV town PS for registration of FIR and for investigation. After registering Ex.P.3 FIR in Cr.No.132/2014 for offence U/sec. 420, 506 r/w 34 of IPC, PW.6 filed charge sheet before this court.

25. PW.1 to PW.3 had stated about subscription made by PW.1 for two plots in the name of clothes stores run in the name and style of Sri Venkata Chalapathi Cloth Stores & Madras

Emporium at Dhone. Ex.P.2 are the 67 payment receipts made to P.Narasimhaiah (A1) 9 concerning the subscription made to the scheme run by A1 except Sl.No.39 ,40 receipts which were given by Somisetty Venkata Ramaiah one of the partner of Sri Sai Traders. The ingredient for offence U/sec. 420 of IPC are not attracted to A2 as the whole scheme was run by A1 and also subscription is made by PW.1 to A1. The evidence of Pw.1 coupled with Ex.P.2 shows the subscription made by him in the name of his cloth stores Sri Venkata Chalapathi Cloth Stores &

Madras Emporium. At the time of filing private complaint, PW.1 had shown only himself, LW.4

K.Amarnath and PW.3 as witnesses. But PW.6 had also examined PW.4 and PW.5 who are not connected with this issue but were only subscribers in the Sri Sai Traders and the issue concerning them is not related to the present case in hand as rightly contended by defence.

26. It is contended by the defence that one Somisetty Venkata Ramaiah had looked after all the subscriptions made to Sri Sai Traders which was a partnership firm and the scheme was run from 1970 to 1973 for three years. A1 was managing partner of the firm. They had not disputed about PW1 being subscriber of Sri Sai Traders but only contended that PW.1 had not paid entire subscription for which the plots were not registered in his name as he paid amount in the name of his cloth stores but not on individual name. Thereafter, the partnership business was closed in the year 1973 and final settlement was made regarding unsold plots by paying nominal amount to register unsold plots on A1. SomisettyVenkata Ramaiah one of the partner had actually created all hurddles to Sri Sai Traders. PW.1 had also stated that Somisetty Venkata Ramaiah is into real estate business and has office at Kurnool. Though PW.1 denied about knowing

Somisetty Venkataramaiah as one of the partner in Sri Sai Traders, receipt No. 39 and 40 shows to have been issued by him to PW.1. It is also contended that from March 2006 to December 2006 said Somisetty Venkataramaiah had sold 80 plots without knowledge of A1.

27. Further defence contended that even the evidence on record shows no allegation against

A2 but only says that he accompanied A1 to scene of offence and there is no specific allegation against A2 either in Ex.P.1 or sec 161 Cr.P.C. statement regarding the alleged offence on 08.08.2013, by the date of alleged incident, A2 was only 8 years and his date of birth is 24.07.1962 and that to prove whether PW.1 had paid entire subscription amount for 3 years to make him eligible for registration of plots, the subscription register is unavailable with A2 and the same is with Sri Sai Trader partner Sri Somisetty Venkataramaiah and grievance of PW 1 is 10 40 years old. Hence, he prayed to acquit A2 from the alleged charges as the case against A1 is already abated.

28. No doubt, on perusal of material on record and the evidence of prosecution witnesses shows the dispute between PW1 and A1 concerning the subscriptions he made in the year 1970 to 1973 and his subscription payments are also supported with Ex.P.2 payment receipts made to A1. There is no whisper about allegations against A2 for offence under 420 of IPC. But

PW.1 to PW.3 evidence shows that when PW.1 questioned accused for registration of plots then

A1 demanded to pay additional amount of Rs.1,00,000/- and as PW.1 could not pay

Rs.1,00,000/-, he paid only Rs. 50,000/- and he was asked to come to Rajiv Gruhakalpa near outskirts of Kurnool on 08.08.2013 and accordingly when PW.1, PW.3 went to the outskirts, A1 and A2 including two others had criminally intimidated them with dire consequences. On perusal of Ex.P.1 private complaint, PW1 had not stated about the presence of PW.2 on the alleged date of incident. However, PW.2 had stated in chief that he was present on the date of alleged incident which is not corroborated with the evidence of PW.1.

29. Apart from that, PW.1 had not stated any specific words used by A2 in causing criminal intimidation. Neither PW.2 and PW3 had stated about any specific language used by A2 in causing criminal intimidation. The criminal intimidation should be in such a manner that instills fear in the mind of victim/ aggrieved. But there is no whisper about the language used by

A2 in causing such criminal intimidation that could instill fear in the mind of PW.1. Apart from that, the evidence of PW1 and PW2 is not in corroboration on the aspect of Criminal intimidation caused by A2. PW.3 stated that A1, A2 along with four or five others came with sticks to beat them and fearing them PW.1 to PW.3 went to bus stand. Whereas PW1 had not stated about arrival of accused along with four others with any sticks. But Ex.P.1 private complaint shows that accused had come along with two others with daggers. The evidence of PW.1 to PW3 on the aspect of criminal intimidation is not corroborated. PW.3 is a Supervisor of Granite factory working under PW.1. Hence his evidence would incline towards PW1.

30.Hence, from the above discussion, the prosecution failed to prove the offence U/sec. 420, 506 r/w 34 of IPC against accused and thereby the accused is entitled for acquittal.

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31. In the result, the accused A2 is found not guilty for offence Under Section 420,506 r/w 34 of Indian Penal Code. Accordingly, accused is acquitted Under Section 248 (1) Criminal

Procedure Code. The bail bonds and sureties of the accused shall be in force for a period of 6 months Under Section 437(A) of Criminal Procedure Code. The case against A1 is abated.

Directly typed to my dictation, corrected and pronounced by me in open court, this the 27th day of December, 2018.

Sd/-K.Asha Rani

Judicial Magistrate of I Class,

Kurnool.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1: Beemaiah Setty P.W.2: B.Suresh Kumar P.W.3: S.Obulesh -None- P.W.4: B.Krishna Murthy P.W.5: P.Ranga Reddy PW.6: M.C.Ranganayakulu

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P.1 : Private complaint Ex.P.2 : Original bunch of payment receipts 67 in number. Ex.P.3 : FIR Ex.P.4: Rough sketch-NIL-

MATEIRAL OBJECTS

NIL

Sd/-K.A.R.

JMFC, KNL.

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CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS :: KURNOOL

Calendar Case No.368/2015

Date of offence.:Prior to 09.04.2014

Date of complaint.:09.04.2014

Date of apprehension of accused:--

Date of release on bail.:--

Date of commencement of trial.:03.07.2018

Date of close of trial.:11.12.2018

Date of sentence or order.:27.12.2018

Explanation.: ----

Complainant: State:Represented by the Inspector of Police, Kurnool IV town Police Station.

S.NoNameFather’s nameReligionOccupatioResidenceAge n

1.Papa Papa HinduH.No.18-67 NarasimhaiahVenkataswamy -100A-68, yrs Sreenivasa Cloth store, Kurnool town 2Papa P.NarasimhaiahHinduH.No.18-40 yrs Venkataswamy--100A-68, Sreenivasa Cloth Store, Kurnool town

Offence. : Cheating and dishonestly inducing delivery of property, criminal intimidation

Section of Law : 420,506 r/w 34 IPC. Finding. : Found not guilty.

Sentence or order: In the result, the accused A2 is found not guilty for offence Under Section 420,506 r/w 34 of Indian Penal Code. Accordingly, accused is acquitted Under Section 248 (1)

Criminal Procedure Code. The bail bonds and sureties of the accused shall be in force for a period of 6 months Under Section 437(A) of Criminal Procedure Code. The case against A1 is abated.

Sd/-K.Asha Rani

Judicial Magistrate of I Class,

Kurnool.

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum-Prl.Asst. Sessions Judge, Kurnool.

C.C.No.568 of 20151SPCL. JMFC (P&E), KURNOOL

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(for Prohibition & Excise), KURNOOL.

PRESENT:-SMT. K. ASHA RANI I Addl. Judicial Magistrate of I Class, Kurnool FAC Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool.

THURSDAY, THE 27th DAY OF DECEMBER, 2018.

C.C.No.568/2015

Between:

State, represented by The Inspector of Police, Kurnool Taluka Police Station.… Complainant.

-And-

A2.Siggari Sreenivasulu @ Thellodu @ Sreenu, 27 years, S/o late K. Venkata Subbanna, Krishna Nagar, Behind SBH ATM, Kurnool town, Caste: Kruva, Occu: Auto Driver.

A3.Bollavaram Pushpa Raju, age 26 years, S/o B. Krishnaiah, Sreeram Nagar, Kurnool town, Caste: SC (Mala) Occ: Coolie.

(Case against A1 is split up and numbered as C.C.No.229/2016) … Accused.

-oo0oo-

This case coming before me on 24-09-2018 for final hearing in the presence of

Assistant Public Prosecutor for prosecution and of Sri N. Narasimhulu, Legal-aid counsel for accused No.2 and Sri N. Siva Prasad, Advocate for the accused No.3 and having stood over for consideration till today, this court delivered the following:

J U D G M E N T

1.The Inspector of Police, Kurnool Taluka Police Station laid charge sheet against the accused Nos.1 to 3 in Crime no.09/2015 for the offence U/s.392 IPC.

2.The brief facts of the charge sheet are that the de facto complainant, Kammari Prasad (LW1) is a resident of Nethaji Nagar, Kurnool and he is a student. G. Deepika (LW2) is his friend. On 10.01.2015 at around 18.30 hours when the de facto complainant and his friend G.

Deepika (LW2) were going to their friend’s house namely Sudeendra Srinivas who is residing at Silpa Singapore township to discuss the problems in practical, while they were crossing orphans home situated on GPRE college, Jagannathagattu road, at about 1900 hours the de facto complainant (LW1) stopped his bike to attend a phone call. In the meanwhile, the

C.C.No.568 of 20152SPCL. JMFC (P&E), KURNOOL accused Nos.1 to 3 came there, restrained their bike wrongfully and demanded to give money otherwise they will be killed. As the de facto complainant (LW1) and G. Deepika (LW2) had no money, the accused No.1 robbed the gold chain containing love dollar from G. Deepika (LW2). They threatened that they will see their end, if they inform to anybody and also slapped the de facto complainant (LW1) and send them from there.

Basing on the complaint of the de facto complainant (LW1) on 11.01.2015 the

Sub-Inspector of Police, Kurnool Taluka P.S (LW10) registered a case and investigated into.

During the course of his investigation on 15.1.2015 the accused Nos.2 & 3 surrendered before

Karanam Ranganatha Rao, VRO (LW4) and Chandrakanthi Gokaramaiah, VRO (LW5) and they recorded their confessional statement and produced them before the Sub-Inspector of

Police, Kurnool Taluka P.S (LW10) where the accused also confessed the commission of offence, along with accused No.1. The Sub-Inspector of Police, Kurnool Taluka P.S (LW10) seized stolen property of gold chain containing love dollar symbol from the possession of accused No.2 under the cover of panchanama. On 19.01.2015 the accused No.1 was produced

before the Sub-Inspector of Police, Kurnool Taluka P.S (LW10) by C. Gokaramaiah (LW6).

3.The case was taken cognizance on file against the accused for the offence under

Sections 392 IPC.

4.On production of the accused no.2 from Central Jail, Kadapa and on appearance of accused no.3, copies of documents were furnished to them as required under section 207

Cr.P.C. They were examined under Section 239 Cr.P.C. for which they denied the commission of the offence. A charge under section 392 IPC against the accused had been framed, read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, PW1 to PW6 were examined and Exs.P1 to P18 and

MO1 is marked. In view of the evidence of PW3 the evidence of LW5/Chandrakanti

Gokaramaiah and inview of the split up of case against accused No.1 the evidence of

LW6/Aluvala Lakshmikantha Reddy, and LW7/Chinnakandukuru Thomson were given up.

C.C.No.568 of 20153SPCL. JMFC (P&E), KURNOOL

The evidence of LW9/Smt.M.V.N. Padmaja, Hon’ble Judicial Magistrate of First Class of

Mobile Court, Kurnool was also given by the learned Assistant Public Prosecutor. The accused were examined under Section 313 Cr.P.C. putting forth the incriminating material that appears against them from the evidence of prosecution witnesses PW1 to PW6. The accused denied their guilt. No evidence either oral or documentary was adduced on behalf of the defence.

7.Now the point for determination is “whether the prosecution has been able to prove the guilt of the accused beyond all reasonable doubt for the offence under section 392

IPC”?

8.In order to establish its case, as already stated the prosecution examined PW1 to PW6 and got marked Exs.P1 to P18 and MO1. PW1 is the de facto complainant, PW2 is the father of the PW1, PW3 is Village Revenue Officer who recorded the confessional statements of accused Nos.2 & 3. PW4 is the victim from whom the MO1 stated to have been robbed by accused. PW5 is the Hon’ble Judicial Magistrate of First Class (Proh. & Excise) Court, who conducted Test Identification parade of accused Nos.1 to 3 and PW6 is the Investigating officer.

9.The arrayed offence against accused is under section 392 IPC which deals with penal provisions of robbery and what is robbery is defined in under section 390 IPC. For the sake of convenience, section 390 IPC is hereunder reproduced.

390. Robbery.—In all robbery there is either theft or extortion. When theft is robbery.—Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.—Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.—The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.

C.C.No.568 of 20154SPCL. JMFC (P&E), KURNOOL

10.PW1 deposed that on 10.1.2015 at about 7.00 PM he along with his classmate PW4 was going to their friend’s house by name Sudindra Srinivasa situated at Silpa township,

Kurnool to discuss about practical examination and when they reached at orphan home, situated near Pulla Reddy Engineering college, he got a phone call. He stopped his vehicle by the side of road and while he was talking over phone after five minutes of the said incident three unknown persons came to them. He further deposed that out of them he can identify accused No.1 only but he cannot identify the remaining persons even if shown to him.

Accused No.1 threatened them and demanded for money and gold. As they have no money after searching, they demanded gold chain which PW4 was having. On that PW4 gave the said gold chain to accused No.1 and left the place otherwise they will kill them. Later, PW1 dropped PW4 at her house.

On the next day PW1 informed about the incident to his father PW2 who is working as

Reserve Constable at APSP. On the advice of PW2, himself and PW4 went to Taluq police station and lodge Ex.P1 complaint and police examined him. On 12.1.2015 one constable came to him and took him to the scene of offence and observed the scene of offence. On 7.2.2015, he along with PW4 went to Sub-Jail, Kurnool as informed by the police earlier for

Test Identification parade and he identified all the accused who approached, threatened and robbed the gold chain from PW4. On 6.3.2015 he attended before the Hon’ble court for recording of his 164 Cr.P.C statement.

11.PW2 who is the father of PW1 and working as Reserve Constable, APSP, Kurnool deposed that on 11.12.2015 at about 8.00 AM, PW1 narrated about the incident that occurred on 10.1.2015 at about 7.00 PM and upon his advice he lodged Ex.P1 report. Later, he went to police station at about 5.30 PM and he was examined by the police.

12.PW3 who is working as VRO, Kurnool deposed that on 15.1.2015 at about 11.00 to 11.30 AM two persons i.e., accused Nos.2 & 3 came to him and on enquiry they revealed their identity particulars and confessed about the commission of offence in this case due to fear of police and surrendered before him. Later, they handed over one gold chain having love symbol dollar and he recorded their confession statement and the same is marked as Ex.P2.

C.C.No.568 of 20155SPCL. JMFC (P&E), KURNOOL

Later, he handed over the accused Nos.2 & 3 along with property and confession statement (Ex.P2) to police with written report marked as Ex.P3. Later, they called LW5/Chandrakanthi

Gokaramaiah, VRO to station and recorded and recorded Ex.P4 confession, seizure and arrest panchanama in his presence.

13.PW4 who is the victim and friend of PW1 deposed that on 10.1.2015 at about 7.00 PM she along with his classmate/PW1 were going to their friend’s house by name Sudindra

Srinivasa situated at Silpa township, Kurnool to discuss about practical examination and when they reached at orphan home, situated near Pulla Reddy Engineering college, she got a phone call. PW1 stopped his vehicle by the side of road and while PW1 was talking over phone after five minutes of the said incident three unknown persons came to them. She further deposed that she cannot identify the accused who are present in the court hall. They threatened them and demanded for money and gold. As they have no money after searching and she was having one gold chain the accused demanded her gold chain and she gave the said gold chain to him, otherwise they will kill them. Later, they left the place and PW1 dropped her at her house.

On the next day, they went to police station and lodged Ex.P1 report and she was examined by the police. On 7.2.2015, she along with PW1 went to Sub-jail, Kurnool as informed earlier for Test Identification Parade and she identified all the accused who approached, threatened and robbed her gold chain. On 6.3.2015 she attended before the

Hon’ble court for recording of his 164 Cr.P.C statement and on 19.3.2015 she received her

gold chain marked as MO1 from the police through court vide Crl.M.P.No.630/2015 dt.19.3.2015 as interim custody.

14.PW5 who was the then Hon’ble Judicial Magistrate of First Class (Proh. & Excise) conducted the Test Identification Parade on 7.2.2015 at about 12.00 noon according to the

Ex.P11 proceedings of the Hon’ble Principal Asst. Sessions Judge, Kurnool after issuing summons to witnesses in this case for their presence at Sub-Jail premises, Kurnool. The witnesses identified all the suspects separately and there was no chance for the witnesses to talk with each other while conducting the Test Identification Parade. The non-suspects chosen

C.C.No.568 of 20156SPCL. JMFC (P&E), KURNOOL are at the will of the suspects and the non-suspect were having similar physical features and resemblances as that of the suspects and the place where the witnesses were asked to sit is far away from the place of Test Identification Parade. There was no access to the police or jail persons to the place of the parade and he recorded the statements of the witnesses and suspects in this case separately enclosed to the TIP proceedings. Ex.P5 is the Test

Identification Parade Proceedings. Ex.P6 and Ex.P7 are the statements of PW1 and PW4.

Ex.P8 to P10 are the statements of accused Nos.1 to 3 respectively.

15.PW6 who is the Investigating officer of this case deposed that on 11.01.2015 while he was present at police station, PW1 along with PW2 and PW4 came to police station and lodged Ex.P1 report and based on the Ex.P1 report he registered a case in Cr.No.9/2015 for the offence and issued Ex.P12 FIR. He examined PW1, PW2 and PW4 at the police station and recorded their detailed statements. On 12.1.2015, he secured the presence of PW1 and visited the scene of offence observed the same and prepared the Ex.P13 rough sketch of the scene of offence. On 15.1.2015 at 1.30 PM, while he was present in the police station, PW3 along with accused Nos.2 & 3 came to the police station and produced them before him along with Ex.P2 report and Ex.P3 confession panchanama. PW3 also produced one gold chain with love symbol dollar and again he recorded Ex.P4 confession statement of accused Nos.2 & 3 in the presence of PW3 and LW5/Chandrakanti Gokaramaiah and seized the gold chain.

On 16.1.2015 at about 1.00 PM after completion of all formalities he produced the accused

before the court for judicial custody.

On 19.1.2015 at about 12.00 noon, while he was present at the police station, he received Ex.P15 confession statement along with Ex.P14 written report of the

LW5/Chandrakanti Gokaramaiah of accused No.1. He once again recorded the same confession statement of accused No.1 in the presence of LW6/Aluvala Lakshmikantha Reddy, and LW7/Chinnakandukuru Thomson marked as Ex.P16 and arrested the accused No.l and produced him before the court.

On 21.1.2015 he filed requisition before the Hon’ble Chief Judicial Magistrate,

Kurnool to appoint a Magistrate to conduct the Test identification Parade of accused Nos.1 to

C.C.No.568 of 20157SPCL. JMFC (P&E), KURNOOL 3 through PW1 to PW4 and after receiving the proceedings from the Hon’ble Chief Judicial

Magistrate, Kurnool he filed the requisition before the Special Judicial Magistrate of First

Class (Proh. & Excise)/PW5 with a request to conduct TIP of accused Nos.1 to 3.

Accordingly, on 7.2.2015 the TIP was conducted by PW5 and he received the said TIP.

On 12.2.2015, he filed requisition before the Hon’ble Chief Judicial Magistrate,

Kurnool with a request to appoint a Magistrate for recording the 164 Cr.P.C statements of

PW1 to PW4 and after received the proceedings from the Hon’ble Chief Judicial Magistrate,

Kurnool he again filed the requisition before the Hon’ble Spcl. JMFC (Mobile court), Kurnool to record the 164 Cr.P.C statement of PW1 to PW4 on 20.2.2015. Accordingly, on 6.3.2015

Smt.M.V.N. Padmaja, Hon’ble Spcl. JMFC (Mobile court), Kurnool recorded the 164 statement of PW1 and PW4 and he received the same marked as Exs.P17 and P18. After completion of investigation, he filed charge sheet in this case.

16.The case is in hand is that while PW1 and PW4 were travelling on motor cycle from

Kurnool to visit one of their friends by name Sudindra Srinivasa house situated at Silpa township, Kurnool town to discuss about practical examination on 10.1.2015 at 7.15 PM, they were accosted by three unknown persons when PW1 stopped his vehicle to attend the phone call. The said three persons threatened PW1 and PW4 to give amount if they have any, but

PW1 and PW4 expressed that they do not have any amount with them and then the said persons had threatened PW4 to give the gold chain from her neck. Fearing them PW4 had handover the gold chain from her neck containing one love symbol dollar to them. Thereafter, those persons left them threatening that if the incident is reported to anyone they would be killed. Thereafter, PW1 dropped PW4 at her house and went to his house and informed the incident to his father PW2 who is working as Reserve constable, APSP, Kurnool.

Thereafter, on 15.5.2015 in between 11.00 or 11.30 AM accused Nos.2 & 3 surrendered before PW3, VRO confessing their commission of offence and handed over MO1 to him. Thereafter, PW3 recorded their statements in Exs.P2 and P3 and handover them along with the statements to police. Thereafter, police in his presence recorded confession and seizure panchanama marked as Ex.P4.

C.C.No.568 of 20158SPCL. JMFC (P&E), KURNOOL

17.On careful perusal of PW1 to PW4 evidence, it is the evidence of PW1 and PW4 who are victims of the incident that the alleged incident occurred near G. Pullareddy Engineering college adjacent to orphans home. But PW1 stated that he can only identify accused No.1 in this case but cannot identify remaining persons i.e., accused Nos.2 & 3 even if they are shown to him. His evidence is in contradiction to the Test Identification parade conducted by PW5 the then Special Judicial Magistrate of First Class for Prohibition & Excise offences, Kurnool wherein Ex.P5 Test identification parade proceedings shows that PW1 and PW4 had identified accused Nos.1 to 3 in the parade conducted at sub-jail, Kurnool.

18.PW4 had stated in chief that she cannot identify those three persons who robbed her gold chain containing love symbol dollar. PW4 clearly stated that she cannot identify those accused and also stated that she does not know whether the accused present in the court hall are the same persons who robbed her gold chain containing love dollar symbol. Hence, when

PW1 and PW4 had stated that they cannot identify accused Nos.2 and 3 in this case how they had identified them in Test identification parade conducted by PW5. Test identification

Parade report is only corroborative in nature and not substantive piece of evidence. However, no individual or offender can approach a third person unknown to them to give confession.

The evidence of PW3 is unreliable for the reasons that he had clearly admitted in his cross examination that he is a stock witness of Kurnool Taluka police station. He also stated that he did not see accused Nos. 2 & 3 prior to the alleged confession stated to have been given to him on 15.1.2015. When the offenders do not know the person before whom they are giving confession, it is very rarely to rely the evidence of PW3. Ex.P4 is cumulative aspect of confession, seizure and arrest panchanama is inadmissible in evidence by virtue of Section 25 & 26 of Indian Evidence Act. Moreover, PW4 had not described the stolen gold chain containing love dollar symbol or mentioned its weight in section 161 Cr.P.C. statement Cr.P.C statement or in Ex.P1 complaint by PW1.

19.PW6 had also not conducted the property identification parade of MO1. PW6 had admitted that he had not got conducted property identification parade of MO1 by any mediators. Moreover, PW4 had not stated in her chief evidence that MO1 is the same

C.C.No.568 of 20159SPCL. JMFC (P&E), KURNOOL property robbed by offenders. Hence, under these circumstances seizure of MO1 is only considered as constructive in nature. The section 164 Cr.P.C. statements of PW1 and PW4 recorded by Hon’ble Judicial Magistrate of First Class of Mobile Court, Kurnool marked as

Exs.P17 & P18 through PW6 clearly shows that PW1 and PW4 had stated before Hon’ble

Magistrate that three unknown persons accosted them and snatched away gold chain

containing love dollar symbol from PW4. The section 164 Cr.P.C statement of PW1 and PW4 are inconsistent with the proceedings of Ex.P5 Test Identification Parade proceedings. Apart from that the alleged confessional statements of accused Nos.2 & 3 stated to have been recorded by PW3 on 15.1.2015 marked as Exs.P2 and P3 shows that MO1 was snatched away by accused No.1 from her neck. But PW4 had not stated that MO1 was snatched from her neck, but stated that fearing them she had voluntarily given MO1 to offenders. Hence, even the alleged confession recorded by PW3 in Exs.P2 and P3 in the form of statements are not in correlation to the facts of the case.

20.The extra judicial confession is very weak piece of evidence. As a Village Revenue officer, it is a duty of PW3 to inform any such incident of confession by any third person made before him to his superior officer as rightly contended by defence. But he had not informed the said incident to Mandal Revenue officer. The cross examination elicitations made during PW5 evidence clearly shows that there was a chance for the witnesses PW1 and

PW4 to identify accused in the Test Identification Proceedings as they reached sub-jail,

Kurnool prior to the officer. Further, PW5 had admitted about not mentioning the dress worn by suspects and non-suspects or their complexion in Ex.P5 Test Identification Parade. As

Ex.P5 Test Identification Parade proceedings are only corroborative in nature and cannot form substantive piece of evidence the same has to be in line with other evidence of prosecution witnesses. But PW1 and PW4 had not identified the accused in the court hall as the same persons whom they have identified in sub-jail, Kurnool during their Test Identification Parade.

Peculiarly, PW1 and PW4 stated that they cannot identify accused Nos.2 and 3 in this case.

21.Further, PW6 stated that MO1 was affixed with identification slips and was submitted to court in the same form which is not in line to the property produced before court. Hence,

C.C.No.568 of 201510SPCL. JMFC (P&E), KURNOOL by virtue of above discussions and considering the evidence on record, the identity of the accused is not proved by the prosecution to bring home the guilt of the accused under section 392 IPC beyond all reasonable doubt and thereby the accused are entitled for acquittal.

22.In the result, the accused Nos.2 & 3 are found not guilty of the offence under sections 392 IPC and accordingly, they are acquitted under Section 248(1) Cr.P.C for the said offence.

The Superintendent Central Jail, Kadapa is directed to set the accused No.2 at liberty, if he is not required in any other case of crime. The bail bonds of the accused No.3 shall be in force for a period of six months as contemplated under Section 437-A Cr.P.C. The case property i.e., MO1 which is already given to PW4 vide Crl.M.P.No.630/2014 dt.16.03.2015 towards interim custody shall holds good after expiry of appeal time.

Dictated to the Personal Assistant, transcribed and typed by him, corrected, signed

and pronounced by me in the open court, this the 27 th day of December, 2018.

Sd/- Smt. K. Asha Rani

I ADDL. JUDL.MAGISTRATE OF FIRST CLASS, KURNOOL

FAC SPECIAL JUDL.MAGISTRATE OF FIRST CLASS (P&E), KURNOOL

Appendix of Evidence

Witnesses Examined

For Prosecution: For Defence: P.W.1: K. Prasad P.W.2: K. Ramaiah Achari - None – P.W.3: K. Ranganatha Rao P.W.4: G. Deepika P.W.5: P. Raju P.W.6: B.V.Madhusudhan Rao

Exhibits Marked

For Prosecution :

Ex.P.1: Complaint given by PW1. Ex.P.2: Confessional Statement of A2 & A3 recorded on 15.1.2015 Ex.P.3: VRO report to police (property and confessional statement) Ex.P.4: Confession, seizure and arrest panchanama Ex.P.5: Test Identification parade proceedings Ex.P.6: Statement of PW1 Ex.P.7: Statement of PW4 Ex.P.8: Statement of A1 Ex.P.9: Statement of A2. Ex.P.10: Statement of A3. Ex.P.11: Proceedings of the Hon’ble Principal Asst. Sessions judge, Kurnool

C.C.No.568 of 201511SPCL. JMFC (P&E), KURNOOL

Ex.P.12: FIR Ex.P.13: Rough sketch Ex.P.14: Written report of LW5/Chandrakanti Gokaramaiah Ex.P.15: Confession statement of A1 Ex.P.16: Confession statement of A1 recorded in presence of LW6 & LW7 Ex.P.17: Section 164 Cr.P.C. statement of PW1 Ex.P.18: Section 164 Cr.P.C statement of PW4

For Defence:

-Nil-

Material objects marked.

For Prosecution: For Defence:

M.O.1: Gold Chain - NIL –

Sd/- Smt. K. Asha Rani

I ADDL. JMFC, KNL

FAC Spl. JMFC(P&E), KNL // TRUE COPY\\

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH. & EXCISE, KURNOOL.

CALENDAR CASE No.568/2015

1. Date of Offence: 31.07.2017

2. Date of Complaint or report: 31.07.2017

C.C.No.568 of 201512SPCL. JMFC (P&E), KURNOOL

3. Date of apprehension of the accused : 19.01.2015 – A1 15-01-2015 - A2 & A3

4. Date of release on bail : 05.08.2015 – A1 23.02.2015 – A3

5. Date of commencement of trial: 13.12.2018

6. Date of close of trial: 24.09.2018

7. Date of Sentence or Order: 27.12.2018

8. Explanation of delay if any: --

COMPLAINANT: The Inspector of Police, Kurnool II Town Police Station in Crime no., 9/2015.

Offence : Robbery.

Section of Law : Under Sections 392 IPC .

Finding of Court: Accused No.2 & 3 are found not guilty for the offence under Sections 392 IPC

Sentence/ Order : In the result, the accused Nos.2 & 3 are found not guilty of the offence under sections 392 IPC and accordingly, they are acquitted under Section 248(1) Cr.P.C for the said offence. The Superintendent Central Jail, Kadapa is directed to set the accused No.2 at liberty, if he is not required in any other case of crime. The bail bonds of the accused No.3 shall be in force for a period of six months as contemplated under Section 437-A Cr.P.C. The case property i.e., MO1 which is already given to PW4 vide Crl.M.P.No.630/2014 dt.16.03.2015 towards interim custody shall holds good after expiry of appeal time.

I ADDL. JMFC, KNL

FAC Spl. JMFC(P&E), KNL Copy submitted to The Chief Judicial Magistrate - Cum - Principal Assistant Sessions Judge, Kurnool.

l.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS: KURNOOL

Present: Smt K.Asha Rani

Judicial Magistrate of I Class, Kurnool

Thursday, the 27 th day of December, 2018

Calendar Case No.292/2017

Between:

State: Rep., by Sub Inspector of Police, Kurnool IV town Police Station.

... Complainant.

-VS- 1.Golla Chinna Venkata Ramudu @ Ramudu, age 32 yrs, S/o. Chinna Venkata Swamy, H.No.80/80, Krishna Nagar, Kallur Mandal, Kurnool. 2.Boya Sreeram, age 20 yrs, S/o. Narayana, Ratnapalli Village, Veldurthy Mandal, now at Chenchu Nagar, Kallur Mandal, Kurnool.

…. Accused

This case coming this day before me for final hearing in the presence of learned

Sr.A.P.P for prosecution and Sri U.Satyapal Reddy, Y.Mohan Raju Advocates for accused and having perused the material this court delivered the following:

:JUDGMENT::

1. The Sub Inspector of Police, Kurnool IV Town Police Station filed charge sheet in

Cr.No.447/2016 for offence under Section 506, 509 r/w 34 of Indian Penal Code against the

Accused .

2. The brief facts of the prosecution case are as follows:

(a) On 13.07.2016, at 6.30 pm, when LW.1 Achugatla Mohammed Shareef was going outside of the house situated in Plot No.1012, at that time A1 and A2 accosted him in filthy language uttering as “Yemira Lanja Kodaka” and picked up quarrel with him.

When, his son LW.2 Achugatla Yasin Shareef, daughter-in-law LW.3 Achugatla Jareen and his wife LW.4 Achugatla Saleema Bee came to his rescue, A1 and A2 having no respect towards the women abused them in unparliamentarily language and insulted the modesty of LW.3 Achugatla Jareen and his wife LW.4 Achugatla Saleema Bee. Further they threatened them giving warning that they would see their end. Out of fear of accused, they could not come to the police station. Subsequently, he came to police station on 01.12.2016 and gave complaint to police.

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(b).Based on the written complaint of defacto complainant A.Mohammed (LW.1), LW.5 Shaik Abdul Nabi, HC 1729 of Kurnool IV town P.S. registered a case in

Cr.No.447/2016 for offence U/sec.506, 509 r/w 34 of Indian Penal Code.

(c). During the course of investigation, LW.6 M.Nagalaxmaiah SI of police on 07.12.2016 had enlarged A1 and A2 on sec.41-A Cr.P.C. notice after obtaining sufficient sureties on their surrender before him at police station. After completion of investigation, he filed charge sheet against accused.

3. On perusal of the charge sheet and other documents filed by the police, the court had taken cognizance of offences under section 506,509 r/w 34 of IPC against accused.

4. On appearance of the accused, copies of this case were furnished to them as contemplated under Section 207 Criminal Procedure Code.

5. The accused were examined Under Section 239 Criminal Procedure Code and they denied commission of offence. He was heard before framing charges. Charge under

Section 506, 509 r/w 34 of Indian Penal Code are framed against Accused and the contents of the charge were read over, explained to the accused in Telugu, for which they pleaded not guilty and claimed to be tried.

6. During the course of trial, the Prosecution examined P.W.1 to PW.6, Ex.P1 to

Ex.P3are marked.

7. After completion of Prosecution evidence, the accused were examined Under

Section 313 Criminal Procedure Code. The substance of incriminating material appearing in the prosecution evidence was read over and explained to accused in Telugu, they denied the same from being true and stated that there is no evidence on their behalf.

8. The learned APP argued that the evidence of PW.1 to PW.6 corroborating to each other on material particulars. Hence their evidence is sufficient to substantiate charges

U/sec. 506, 509 r/w 34 IPC against accused, hence they may be convicted for above offence.

3

9. The defence counsel argued that PW.1 had given complaint after six months of alleged incident and to cover latches of delay, he had created a story of giving first complaint on 13.07.2016 and again on 01.12.2016. Further submitted that PW.1 has shops which are fallen vacant unoccupied, hence having the grudge that accused 1 had occupied shop in front of his shop without occupying his shop filed false case against them. Further contended that there was no incident occurred on the date of alleged incident as no eye witness was examined by prosecution. The investigating officers did not seize any empty alcohol bottles from scene of offence or shown the same in Ex.P.3 rough sketch. The delay in giving complaint to police is fatal to the prosecution case. Hence, he prayed the Hon’ble

Court may be pleased to acquit the accused.

10. Heard oral arguments on both sides, considered the evidence of P.W.1 to PW.6 coupled with Ex.P1 to Ex.P.3 and other material on record.

11. Now the point for determination is:

Whether accused had caused criminal intimidation to PW.1 and also abused PW1,

PW.3 and PW.4 unparliamentarily language and whether the prosecution could prove the guilt of the accused for the offence punishable U/sec. 506, 509 r/w 34 of IPC beyond reasonable doubt?

POINT :

12.PW.1 is defacto complainant, PW.2 is son of PW.1. PW.3 is daughter-in-law of

PW.1. PW.4 is wife of PW.1. PW.5 and PW.6 are investigating officers.

13.The arrayed offence against accused are U/secs. 506, 509 r/w 34 of IPC. For the sake of convenience, the sections are hereunder reproduced.

506. Punishment for criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

509. Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the 4 privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

14. To prove the offence U/sec. 506 of IPC, the prosecution has to prove that criminal intimidation as defined U/sec.503 of IPC was caused to PW.1 and his family members.

What is criminal intimidation is defined U/sec. 503 of IPC which means, Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation

15.In this regard, PW.1 deposed that he along with his family members residing in H.No.80-43A, H.No. 80-40-1, at Krishna Nagar, Kurnool and are total 13 members residing in the said house. Towards eastern side of their house there exists Plot No.102 owned by one Danimi Reddy. He has also two houses and two godowns. The plot No.102 was given on rent to G.Ramudu (A1) and he was running the shop in the name and style of

Sri Venkateswara Glass and Plywood works and engaged in glass cutting works. Accused including his followers used to have alcohol and make huge sounds while cutting the glasses and were disturbing nearby people and often throw empty alcohol bottle infront of his shop and also in the lane adjacent to his shop. He questioned accused many times for their miscreant behavior. They did not respond to his question but started harassing him by doing all miscreant works. Further they threatened him that if they kill him or beat him no one can come in their way. He kept silent due to old age by tolerating their activities.

16.On 13.07.2016, at about 6.30 pm, A1 including 5 or 6 members came upon him abusing him “ Lanjakodaka” and tried to beat him then his son (PW.2) and daughter-in- law (PW.3) including other family members came and rescued him but A1 without stopping started abusing female members of their family saying “Lanja”. Fearing him and his followers they kept silent. Thereafter, they gave written complaint to Kurnool IV town head constable after waiting for inspector of police till his arrival at 9.30 pm. Later on 01.02.2016. Inspector of police, Kurnool IV town police contacted him concerning the 5 complaint and asked him to give fresh complaint with fresh date 01.12.2016. Accordingly, he gave another complaint on 01.12.2016. Ex.P.1 is complaint. Police examined him.

17.PW.2, PW.3 and PW.4 being family members of PW.1 had deposed on similar lines of PW.1 stating that A1 including his friends causing nuisance to nearby residents by making sounds after having alcohol and often throw empty alcohol bottles infront of their shop and many times PW.1 had questioned them for their acts. For which on 13.07.2013, at about 6.30 pm, while PW.1 was going outside of the house, accused started arguing with PW.1. Hearing the arguments, PW.2 to PW.4 came outside and found that accused were disputing with PW.1 stating that they will live according to their wish and have alcohol during nights and dance to the tunes and questioned for their interference.

Thereafter, PW.2 to PW.4 intervened and pacified the issue but accused without considering that PW.3 and PW.4 are women started abusing them in unparliamentary language, thereafter, they gave complaint to police.

18.PW.5 deposed about registering FIR in Cr.No.447/2016 for offence U/sec.

506, 509 r/w 34 of IPC on receiving Ex.P.1. Ex.P.2 is FIR. He examined PW.1 at police station and recorded his statement. He visited the scene of offence and prepared rough sketch. Ex.P.3 is rough sketch. He examined PW.2 to PW.4 and recorded their statements at scene of offence. On 07.12.2016, accused surrendered before him at police station and he enlarged them on sec.41-A Cr.P.C. notice after obtaining sufficient sureties. Further investigation is carried by PW.6 SI of police.

19.PW.6 deposed that he verified the investigation done by PW.5 and found it was on correct lines. After completion of investigation, he filed charge sheet.

20.On perusal of entire prosecution evidence, no independent witness was examined by the prosecution, PW.1 to PW.4 are all family members of PW.1. The alleged incident shown to have occurred on 13.07.2016, at 6.30 pm when PW.1 was going outside of the house then A1 including 5 or 6 members came upon him abusing him “Lanjakodaka” and tried to beat him but on the intervention of PW.2 to PW.4, he was rescued. However, 6 complaint was given to police on 01.12.2016 after gap of 5 months. The reason assigned by

PW.1 was that he kept on waiting for the arrival of inspector of police for giving complaint.

On 01.12.2016 inspector of police contacted him and asked him to give a fresh complaint with fresh date, hence he gave another complaint on 01.12.2016.

21.The evidence of PW.1 is not corroborated with the evidence of PW.5, PW.6 investigating officers, they had clearly stated that PW.1 had not given any complaint on 13.07.2016 but approached them only on 01.12.2016. Further PW.1 is a retired traffic inspector, hence his complaint could not be kept aside by the police, if it was given on the same day of incident i.e, on 13.07.2016. Moreover, one Sebari clinic and Society building is adjacent to scene of offence, but the reason for not examining any witness from those areas by investigating officer is not given by prosecution. The alleged incident is shown to have occurred on the main road infront of accused shop. But no independent witness was examined by them. The delay in giving complaint to police is fatal to the prosecution case.

22.Further PW.1 admitted during cross-examination that he did not mention in

Ex.P.1 (drafted on 01.12.2016) that he had also given another complaint on 13.07.2016. He also admitted that adjacent to his house there is one plot No.102 owned by Y. Laxmi

Narayana. Further, considering the works carried by accused, it is common that during glass cutting sound emanates and if PW.1 had any issue with those huge sounds, he should have informed to the concerned owner for vacating shop. But he did not do so for the reason that he does not have good terms with its owner. As per the evidence of PW.1 to

PW.4, accused used to throw alcohol bottles infront of their shop and also in the lane adjacent to their house but PW.5 and PW.6 had not seized any empty alcohol bottles from scene of offence or shown the same in Ex.P.3 rough sketch.

23.It is contended by the defence that even PW.1 has shops which are fallen vacant unoccupied, hence having the grudge that other person shops were occupied by accused a false case foisted against them. Further, PW.1 stated during cross examination that he did not complain the incident of accused having alcohol and making huge sounds during nights to the owner of Plot No.102 which is consistingof 2 portions of which one is 7 given on rent to A1 and the reason assigned by him was that he has no good terms with owner of plot No.102. The said voluntary statement of PW.1 itself shows that there are disputes pending between him and owner of plot 102.

24.He further admitted that except him no resident had given complaint to policewhen the alleged incident of having alcohol and making huge sounds during night is made by accused. The other residents of the same area would have given complaint to police if really the incident would have occured. But no such complaint is given by any resident. PW.1 denied the suggestion that, due to accused occupying Plot No. 102 owned by

Damini Rreddy with whom he does not have good terms, he filed false complaint against accused for getting them vacated from the shop as he has no tenant to the shop. Further,

PW.1 stated that he did not handover any empty alcohol bottles to police. To which witness voluntareed in saying that it will be a silly incident to hand over alcohol bottles to police.

The witness was very high pitched and was continuously arguing in the Court without giving apt answers to the questions posed by the defence.

25.Further the suggestion putforth by the defence that scene of offence shows that accused shop is facing main road and in case the shop is kept opened till 2.30 am causing disturbance to the nearby residents, The same would be noticed by the beet constables travelling on the road, But no such incident so far was reported to police and considering that the delay in giving complaint is not properly explained by the prosecution, the charges for offence U/sec. 506, 509 r/w 34 of IPC are not made out.

26.Apart from that to bring home the guilt of accused U/sec. 506 of IPC, the fear and threat should be in such an extent that instills fear in the mind of complainant but considering the facts of the case and the delay and the demaneour of PW.1, this court found that the prosecution failed to prove the alleged charges against accused. Hence, thereby accused are entitled for acquittal.

27. In the result, the accused A1 and A2 found not guilty for offence punishable

Under Section 506, 509 r/w 34 of Indian Penal Code. Therefore, accused are acquitted 8

Under Section 248 (1) Criminal Procedure Code. The bail bonds and sureties of the accused shall be in force for a period of 6 months Under Section 437(A) of Criminal

Procedure Code.

Dictated to the Personal Assistant, transcribed by her, corrected on official laptop

and pronounced by me in open court, this the 27th day of December, 2018.

Sd/-K.Asha Rani

Judicial Magistrate of I Class,

Kurnool.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1: A.Mohammed P.W.2: A.Yasin Shareef P.W.3: A.Jareen -None- P.W.4: A.Saleema Bee P.W.5: Shaik Abdul Nabi PW.6: M.Nagalaxmaiah

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P.1 : Complaint Ex.P.2 : First Information Report.-Nil- Ex.P.3: Rough sketch.

Sd/-K.A.R.

JMFC, KNL.

9

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS :: KURNOOL

Calendar Case No.292/2017

Date of offence.:13.07.2016

Date of complaint.:01.12.2016

Date of apprehension of accused:--

Date of release on bail.:--

Date of commencement of trial.:23.10.2018

Date of close of trial.:19.12.2018

Date of sentence or order.:27.12.2018

Explanation.: ----

Complainant: State:Represented by the Sub Inspector of Police, Kurnool IV town Police Station.

S.NoNameFather’s nameReligionOccupatioResidenceAge n

1.Golla Chinna Chinna Venkata HinduH.No.80/80, 32 Venkata RamuduSwamy-Krishna Nagar,yrs @ Ramudu Kallur Mandal, Kurnool.

2Boya SreeramNarayanaHinduRatnapalli 20 yrs -Village, Veldurthy Mandal, now at Chenchu Nagar, Kallur Mandal, Kurnool

Offence. : Punishment for criminal intimidation, Word, gesture or act intended to insult the modesty of a woman

Section of Law : 506,509 r/w 34 IPC. Finding. : Found not guilty.

Sentence or order: In the result, the accused A1 and A2 found not guilty for offence punishable Under Section 506, 509 r/w 34 of Indian Penal Code. Therefore accused are acquitted Under Section 248 (1) Criminal Procedure Code. The bail bonds and sureties of the accused shall be in force for a period of 6 months Under Section 437(A) of Criminal Procedure Code.

Sd/-K.Asha Rani

Judicial Magistrate of I Class,

Kurnool.

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum-Prl.Asst. Sessions Judge, Kurnool.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS: KURNOOL

Present: Smt K.Asha Rani

Judicial Magistrate of I Class, Kurnool

Saturday, the 22 nd day of December, 2018

Calendar Case No.892/2018

Between:

State: Rep., by Sub Inspector of Police, Kurnool IV town Police Station.

... Complainant.

-VS-

Kasepogu Ashok, age 30 yrs, S/o. K.Nagaraju, R/o. H.No.47-14/80, Budhavarapeta, Kurnool.

…. Accused

This case coming this day before me for final hearing in the presence of learned

Sr.A.P.P for prosecution and Sri G.Ramesh Babu Advocate for accused and having perused the material this court delivered the following:

:JUDGMENT::

1. The Sub Inspector of Police, Kurnool IV Town Police Station filed charge sheet in

Cr.No.13/2018 for offence under Section 457,380 r/w 511 of Indian Penal Code against the

Accused .

2. The brief facts of the prosecution case are as follows:

On 06.01.2018, when all the members of defacto complainant/LW.1

B.Seetharamaiah went to Srisailam by locking their house door H.No.80-142-5, Sri Rama

Colony, Gooty road, Kurnool town informing to police, Police installed LHMS CC cameras in their house. On 07/08.01.2018 at 1.00 am, police informed him that their house doors were opened and instructed them to come back to their house and on receipt of information on the next day early morning i.e., 08.01.2018, at about 8.30 hrs, defacto complainant rushed to their house and noticed the house lock was broken. On verification of things nothing was found stolen. However, one of the almarah was found open. Hence he gave complaint to police.

2

(b). Based on the report of LW.1 B.Seetharamaiah, LW.5 M.Naga Laxmaiah,

SI of police registered a case in Cr.No.13/2018 of Kurnool IV town P.S for offence U/sec.

457,380 r/w 511 of Indian Penal Code against the Accused.

(c) LW.5 M.Nagalaxmaiah, SI of police, Kurnool IV town PS had observed the

CC footage clippings, identified the said unknown offender as old offender Kasepogu

Ashok, S/o. Nagaraju, Budhavarapet, Kurnool town.

(d)During the course of investigation, LW.5 M.Nagalaxmaiah, SI of police,

Kurnool IV town PS arrested the accused and recorded his confessional statement in the presence of panchayatdars (LW.4) Shaik Shukur Basha and LW.5 Siriguppa Ramanaiah and produced him before hon'ble court for judicial custody. After completion of investigation, police filed charge sheet against accused.

3. On perusal of the charge sheet and other documents filed by the police, the court had taken cognizance of offences under section 457,380 r/w 511 of IPC against accused.

4. On appearance of the accused, copies of this case were furnished to him as contemplated under Section 207 Criminal Procedure Code.

5. The accused was examined Under Section 239 Criminal Procedure Code and he denied commission of offence. He was heard before framing charges. Charge under

Section 457, 380 r/w 511 of Indian Penal Code against the Accused is framed and the contents of the charges were read over, explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried.

6. During the course of trial, the Prosecution examined P.W.1 to PW.5, Ex.P1 to

Ex.P.6 are marked. The evidence of LW.6 N.Hanumanthaiah, Sub Inspector of police,

Kurnool IV town PS was given up by the prosecution.

7. After completion of Prosecution evidence the accused was examined Under

Section 313 Criminal Procedure Code. The substance of incriminating material appearing 3 in the prosecution evidence was read over and explained to the accused in Telugu for which he denied the same from being true and stated that there is no evidence on his behalf.

8. Heard oral arguments on both sides, considered the evidence of P.W.1 to PW.5 coupled with Ex.P1 to Ex.P.6 and material on record.

9. Now the point for determination is:

Whether accused had broke open the lock of PW.1's house and whether the prosecution could prove the guilt of the accused for the offence punishable U/sec. 457, 380 r/w 511 o f IPC against accused beyond reasonable doubt?

POINT NO.1 :

10. To prove the prosecution case, the Prosecution had examined P.W.1 to PW.5 and got Ex.P1 to Ex.P.6 marked. PW.1 is the defacto complainant, PW.2 is police constable 1788. PW.3 and PW.4 are arrayed mediators. PW.5 is investigating officer.

11. The offence arrayed against accused is U/sec. 457, 380 r/w 511of IPC.

Sec.457 of IPC Lurking house-trespass or house-breaking by night in order to

commit offence punishable with imprisonment.—Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.

Sec. 380 of IPC -Theft in dwelling house, etc.—Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

12. (a) To prove the offence U/sec. 457 of IPC, the prosecution has to prove that accused have lurked house trespass by night in order to commit offence punishable with imprisonment. What is lurking house trespass is defined U/sec. 444 of IPC which says that whoever commits lurking house trespass after sunset or before sunrise is said to commit – lurking house trespass by night”.

4

(b) The offence U/sec. 380 of IPC requires the prosecution, to prove that theft occurred in the house of PW.1 used for human dwelling.

13.PW.1 deposed that on 06.01.2018, all the family members planned to go to

Srisailam and they have gone to Nandikotkur before going to Srisailam by locking their house situated in Srirama Colony Gooty road and informed the same to police. Police installed LHMS CC cameras in their house. On 07.01.2018, during 1.00 am, police informed him that their house doors were opened and instructed them to come back to their house. On 08.01.2018, he came to his house and noticed that house door lock was broke open. On verification of things, nothing was stolen. However, one of the almarah was opened. He gave complaint to police. Ex.P.1 is complaint. Police examined him.

14. PW.2 deposed that on 06.01.2018, on the request of PW.1, they fixed

LHMS CC cameras at his house during his absence. On 07.01.2018, while he was on

LHMS duty they noticed one alaram beep from the house of PW.1. On verification of

LHMS cameras, they noticed one person was moving around the house and was looking into the installed CC cameras. They informed the incident to PW.1. Later police examined him and he handed over CC TV footages to them. He can identify said person. Witness identified accused as said person and again stated that the person in CC TV footage was dark in complexion.

15. PW.3 and PW.4 were declared hostile by the prosecution and during cross examination of the learned APP, they denied to have acted as mediators on 23.01.2018 or in their presence police apprehended the accused or recorded the confession statement of accused.

16.PW.4 deposed that on 08.01.2018, at about 18.00 hrs, while he was present in police station PW.1 came to police station and gave a written complaint. Basing on which, he registered a case in Cr.No. 13/2018 for offence U/sec. 457,380 r/w 511 of IPC.

Ex.P.4 is FIR. He submitted original FIR to Hon’ble Court and all copies to concerned officers. Then he examined PW.1 and recorded his sec.161 Cr.P.C. statement. He visited 5 scene of offence situated at Srirama colony near Gooty petrol bunk and drawn rough sketch. Ex.P.5 is rough sketch.

17. On 23.01.2018, he apprehended accused near Krishna Nagar ITC company in the presence of mediators PW.3 and PW.4 and recorded confession panchanama. Ex.P.6 is confession panchanama, dt. 23.01.2018. Then he brought the accused to police station and produced him before hon'ble court for judicial custody. After completion of investigation, his successor filed charge sheet.

18. On over all perusal of prosecution witnesses evidences, it is the case of the prosecution that on 06.01.2018, when all the members of PW.1 went to Srisailam by locking their house door situated in H.No. 80-142-5, Sri Rama Colony, Gooty road,

Kurnool town, by informing to police, Police installed LHMS CC cameras in their house.

On 07.01.2018, at 1.00 am, police informed P.W.1 that their house doors were opened and instructed them to come their house. On receipt of information, PW.1 came to his house and noticed the house lock was broke open. On verification of things, nothing was found stolen.

However, one of the almarah was found opened. Hence he gave complaint to police. Ex.P.1 is complaint. Police examined him.

19.During his cross examination, PW.1 stated police did not inform the name of the offenders who broke open his house locks and also how many members were the offenders. He also admitted that their house is surrounded by other residential houses.

Further admitted that they do not have proper street lights in their street and also admitted their neighbours had not informed him about broke open of his house lock except police and that Ex. P.1 was not drafted by him.

20.PW.5 deposed about registering FIR in Cr.No.13/2018 for offence u/sec.

457, 380 r/w 511 of IPC on receiving Ex.P.1 from PW.1. On 23.01.2018, he arrested the accused near Krishna Nagar ITC company in the presence of mediators viz. PW.3 and

PW.4 and recorded confession statement of accused under cover of panchanama. Ex.P.6 confession panchanama, dt. 23.01.2018. Then he brought accused to police and produced 6

before Hon’ble Court for judicial remand. On completion of investigation, his successor

filed charge sheet.

21. During cross-examination, he admitted that he did not seize LHMS (Locked house monitoring system) cameras. As per the prosecution case, in the absence of PW.1

LHMS cameras were fixed to PW.1 house situated in H.No. 80-142-5, Sri Rama Colony,

Gooty road, Kurnool town. LHMS Cameras are being Monitered by PW.2 and he deposed about noticing alaram beep from the house of PW.1. On verification of LHMS cameras they noticed one person was moving around the house and was looking into installed CC

Cameras. Thereafter they informed the incident to PW.1. Police examined him and he handed over CC TV footage to them. He stated that he can identify the said person who was moving around PW.1’s house.

22. Witness identified accused as the said person but again stated that the person in CC tv footage was dark in complexion. When PW.2 stated to have handed over

CCTV footage to PW.5, the reason for not filing the same into the court, is not given by the prosecution. Without there being, identity of accused poved, in being offender, the charges against him are baseless. Ex.P.6 confession panchanama dt. 23.01.2018 is inadmissible in evidence for the reason of being hit by sec.25 and 26 of Indian Evidence Act. There is no theft committed in the house of PW.1 but attempt was stated to have done by offender.

PW.5 had not seized the broken lock from scene of offence or took photographs of scene of offence to substantiate his version.

23. PW.2 had also admitted that there would be differences of appearance of person in CC TV footages to that of the person in presence prosecution and that one cannot strictly identify a person seen in dark night. The arrayed mediators PW.3 and PW.4 were declared hostile by the prosecution and they denied to have acted as mediators on 23.01.2018 or in their presence police apprehended the accused or recorded the confession statement of accused.

7

24.PW.3 and PW.4 were arrayed mediators in number of cases in Kurnool IV town PS and they are been stock witness of Kurnool IV town P.S. Inspite of that they did not support the prosecution case. There is no other evidence corroborating evidence of

PW.6 hence, prosecution failed to prove the alleged offence U/sec. 457,380 r/w 511 of IPC and thereby he is entitled for acquittal.

25. In the result, the accused is found not guilty for offence U/sec. 457,380 r/w 511 of IPC. Accordingly, the accused is acquitted U/sec. 248 (1) of Cr.P.C. The bail bonds and sureties of accused if any shall be inforce for a period of six months U/sec.437- A of

Cr.P.C.

Dictated to the Personal Assistant, transcribed by her, corrected on official laptop

and pronounced by me in open court, this the 22nd day of December, 2018.

SD/-K.Asha Rani

Judicial Magistrate of I Class,

Kurnool.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1: B.Seetharamaiah P.W.2: S.Lakshman Naik P.W.3: S.Ramanaiah –None- P.W.4: S.Sukhur Basha P.W.5: M.Nagalakshmaiah

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1 :Complaint. Ex.P.2 : Signature of PW.3 on panchanama, dt. 23.01.2018 Ex.P.3: Signature of PW.4 on panchanama, dt. 23.01.2018 Ex.P.4: FIR Ex.P.5: Rough sketch Ex.P.6: Confession panchanama, dt. 23.01.2018

FOR DEFENCE:

-Nil-

MATERIAL OBJECTS

NIL

Sd/-K.A.R

JMFC, KNL.

8

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS :: KURNOOL

Calendar Case No.892/2018

Date of offence.:06.01.2018 to 08.01.2018

Date of complaint.:08.01.2018

Date of apprehension of accused:23.01.2018

Date of release on bail.:12.02.2018

Date of commencement of trial :18.09.2018

Date of close of trial.:22.12.2018

Explanation.: ----

Complainant: State: Represented by the Sub Inspector of Police, Kurnool IV town Police Station.

S.NoNameFather’sReligioOccupatiResidenceAge namenon

1.Kasepogu AshokK.Nagaraju, H.No.47-14/80, 30 --Budhavarapeta, Yrs Hindu Kurnool.

Offence. : Lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment, Theft in dwelling house,

Section of Law : 457,380 r/w 511 IPC. Finding. : Found not guilty.

Sentence or order: In the result, the accused is found not guilty for offence U/sec. 457,380 r/w 511 of IPC. Accordingly, the accused is acquitted U/sec. 248 (1) of Cr.P.C. The bail bonds and sureties of accused if any shall be inforce for a period of six months U/sec. 437- A of Cr.P.C.

Sd/-K.Asha Rani

Judicial Magistrate of I Class,

Kurnool.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Prl. Asst. Sessions Judge, Kurnool.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS: KURNOOL

Present: Smt K.Asha Rani

Judicial Magistrate of I Class, Kurnool

Saturday, the 22 nd day of December, 2018

Calendar Case No.610/2017

Between:

State: Rep., by Sub Inspector of Police, Kurnool IV town Police Station.

... Complainant.

-VS-

Maddela Ramu, age 39 yrs, S/o. M.Ayyaswamy, R/o.H.No.81/24, Shareen Ngar, Kallur Mandal, Kurnool town . Driver of car bearing No. AP 21 AN 9338. …. Accused

This case coming this day before me for final hearing in the presence of learned

Sr.A.P.P for prosecution and Sri V.Vijaya Kumar Advocate for accused and having perused the material this court delivered the following:

:JUDGMENT::

1. The Sub Inspector of Police, Kurnool IV Town Police Station filed charge sheet in

Cr.No.329/2016 for offence under Section 304-A of Indian Penal Code against the Accused.

2. The brief facts of the prosecution case are as follows:

(a)On 19.09.2016, morning, the deceased C.Venkatalaxmamma left the house and proceeded towards Chennamma circle in order to visit Ramalayam temple, while so at about 9.30 am, while defacto complainant/ LW.1 C. Muniswamy was at his house, he received a phone call from known person by name Nagaraju informing about the accident of his aunt (deceased) on service road, infront of Ramalayam temple at Chintalamuni

Nagar, Kurnool. Immediately, he along with LW.3 Y. Kondaiah (uncle) rushed to the spot where he found the deceased was lying on the road with severe bleeding injuries. Then on enquiry, he came to know that the accused being the driver of car bearing No. AP 21 AN 9338 drove his vehicle in rash and negligent manner at high speed from Shareen Nagar side and dashed against the deceased while she was crossing road infront of Ramalayam temple at Chintalamuni Nagar, Kurnool and caused severe bleeding injuries to deceased on her head and body. Immediately, they shifted the injured to Govt. General Hospital, Kurnool 2 for treatment. Where the deceased succumbed to death on the same day at 13.30 hrs while undergoing treatment.

(b).Based on the report of defacto complainant C.Muniswamy (LW.1), LW.11

M.Ramalaxmaiah, the Sub Inspector of police of Kurnool IV town P.S registered a case in

Cr.No.329/2016 for offence U/sec.304-A of Indian Penal Code.

(c). During the course of investigation, LW.11 M.Ramalaxmaiah SI of police, conducted inquest over the dead body of deceased on 20.09.2016.

(d) During the course of further investigation, the SI of police (Lw.11) arrested accused on 22.09.2016, at 10.30 hrs, he served sec.41-A Cr.P.C. notice on accused and after obtaining sufficient sureties he released him.

(e) LW.9 Asst. Professor, Dept. of Forensic Medicine, Kurnool Medical College,

Kurnool, conducted autopsy over the dead body of the deceased and opined that deceased died due to 'Intra Cranial Bleeding Associated With Skull Bones Fractures Resulting From

Head Injuries".

(f) LW.10 Asst. Motor Vehicle inspector, Kurnool, inspected the crime vehicle and opined that the accident was not occurred due to any mechanical defects of vehicle. After completion of investigation, police filed charge sheet against accused.

3. On perusal of the charge sheet and other documents filed by the police, the court had taken cognizance of offences under section 304-A of IPC against accused.

4. On appearance of the accused, copies of this case were furnished to him as contemplated under Section 207 Criminal Procedure Code.

5. The accused was examined under section 251 Criminal Procedure Code. The substance of accusation leveled against him under section 304-A of IPC was read over and explained to him in Telugu to which the accused pleaded not guilty and claimed to be tried.

6. During the course of trial, the Prosecution examined P.W.1 to PW.6, Ex.P1 to

Ex.P11are marked. The evidence of LW.3 Y.Kondaiah, L W.7 Mohammed Ibrahim, LW.8 3

Bekkam Prabhakar Reddy, LW.9 Dr. R.Shankar, LW.10 Ramana Naik were given up by the prosecution.

7. After completion of Prosecution evidence, the accused was examined Under

Section 313 Criminal Procedure Code. The substance of incriminating material appearing in the prosecution evidence was read over and explained to accused in Telugu, he denied the same from being true and stated that there is no evidence on his behalf.

8. The learned APP argued that though material witness turned hostile. The evidence of PW.6 investigating officer is sufficient to bring home the guilt of accused. Therefore his evidence is sufficient to substantiate charges U/sec 304- A IPC against accused, hence prayed the Hon’ble Court may be pleased to convict the accused.

9. The defence counsel argued that the material witness PW.1 to PW.5 did not support the prosecution case. The investigating officer did not visit the scene of offence or examined any witness or prepared rough sketch but conducted table investigation implicating accused and that PW.1 had not given any complaint but he obtained his signature on complaint for statistical purpose. Hence, he prayed the Hon’ble Court may be pleased to acquit the accused.

10. Heard oral arguments on both sides, considered the evidence of P.W.1 to PW.6 coupled with Ex.P1 to Ex.P.11 and other material on record.

11. Now the point for determination is:

Whether accused had caused death of deceased Chinthakunta Venkatalaxmamma due

to rash and negligent act of accused (driver of car) with Crime vehicle bearing No. AP 21 AN 9338 and whether the prosecution could prove the guilt of the accused for the offence punishable U/sec. 304-A of IPC beyond reasonable doubt?

POINT :

12. To prove the prosecution case, the Prosecution had examined P.W.1 to PW.6 and got Ex.P.1 to Ex.P.11 marked. PW.1 is defacto complainant. PW.2 and PW.3 are arrayed eye witnesses. PW.4 is an inquest panchayatdar. PW.5 is owner of crime vehicle. PW.6 is investigating officer.

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13. To prove the offence U/sec. 304-A of IPC, the prosecution has to prove the identity of accused in being driver of crime vehicle bearing No.AP 21 AN 9338 and that with rash and negligent act he caused the accident resulting death of Chinthakunta

Venkatalaxmamma.

14. The evidence of PW.1 was declared hostile by the prosecution and during cross examination by learned APP, he denied to have stated before police as in Ex.P.2 sec.161

Cr.P.C. statement but stated that on 19.09.2016, he received phone call from known person informing that his maternal aunt met with an accident near Ramalayam temple at

Chinthalamuni Nagar. His maternal aunt used to stay with him and look after his child. He does not know how the accident occurred. However, when he was in hospital police obtained his signatures on some papers. He does not know its contents. Ex.P.1 is signature on complaint dt. 19.09.2016. Police did not examine him.

15.The evidence of PW2 was declared hostile by the prosecution and during cross examination by learned APP, he denied to have stated before police as in Ex.P.3 sec.

161 Cr.P.C. statement but stated that while he was going to his coolie works he saw one lady with injuries on her head near Ramalayam temple and he shifted her to hospital. He does not know how she sustained injuries. She informed him that she fell on the road. He does not know whether thereafter she died. Police did not examine him.

16. The evidence of PW.3 was also declared hostile by the prosecution and during cross examination by learned APP, he denied to have stated before police as in

Ex.P.4 sec. 161 Cr.P.C. statement.

17.PW.4 deposed that on 20.09.2016, he attended inquest conducted over the dead body of deceased C.Venkatalaxmamma in mortuary room of Govt. General Hospital,

Kurnool. He acted as inquest panchayatdar along with L.W.7 Mohd. Ibrahim and L.W.8

Prabhakar Reddy. Police prepared inquest report. They signed on the same. They opined that deceased died in accident. Ex.P.5 is inquest report.

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18. The only evidence available on record is that of PW.6 and he deposed that on 19.09.2016, at about 4.30 pm, while he was present in police station, PW.1 gave written complaint. Basing on which he registered a case in Cr.No.329/2016 for offence U/sec. 304-

A of IPC. Ex.P.7 FIR. He submitted original copy to Hon’ble Court and all copies to concerned officers. Ex.P.8 is complaint. Along with PW.1, he went to Govt. General

Hospital, Kurnool and he examined PW.1 to PW.5 and L.W.3 Y.Kondaiah and recorded their statements. PW.1 to PW.3 stated before him as in Ex.P.2 to Ex.P.4. He visited scene of offence situated in front of Chennamma circle near Ramulavari temple and prepared rough sketch. Ex.P.9 is rough sketch.

19.He also seized crime vehicle. i.e, Car bearing No. AP 21 AN 9338 from scene of offence and shifted it to Kurnool IV town PS premises. He conducted inquest over body of deceased on 20.09.2016 at Govt. General Hospital, Kurnool in the presence of inquest panchayatdar PW.4, L.W.7 Mohd.Ibrahim and L.W.8 Prabhakar Reddy. He sent the dead body to department of forensic medicine for conducting autopsy. He also issued requisition to AMVI to inspect crime vehicle on 24.09.2016.

20.He apprehended accused on 22.09.2016 when he surrendered before him at police station and enlarged him on bail after obtaining sufficient sureties. Soon after inspecting crime vehicle by AMVI he returned crime vehicle to its owner (PW.5). On receipt of PME report, MVI report he filed charge sheet before this court. Ex.P.10 is PME report. Ex.P.11 is MVI report.

21.The evidence of PW.6 investigating officer is not corroborated with any evidence of prosecution witnesses. The prosecution had also got marked Ex.P.10, Ex.P.11 through PW.6 only without summoning the doctor who conducted postmortem examination and Asst. MVI who inspected crime vehicle. Further the owner of the crime vehicle i.e, car bearing No AP 21 AN 9338 is examined as PW.5 and he has not stated about giving his vehicle to accused on the day of accident but only stated that about two years back police informed him about seizure of his car in one of the accident case and then he went to police 6 station and obtained custody of the same. The witness was declared hostile by the prosecution and during cross examination by learned APP, he denied to have stated before police as in Ex.P6 sec 161 Cr.P.C. statement.

22.The material witness to prosecution case had also not supported the prosecution case. The eye witnesses PW.2 was also declared hostile by the prosecution and he had only stated about finding deceased with injuries on her head near Ramalayam temple and shifted her to hospital and on enquiry the deceased informed him that she fell on the road and sustained injuries. The witness was declared hostile by the prosecution and he denied to have stated before police as Ex.P.3 sec.161 Cr.P.C. statement. The other prosecution witnesses were also declared hostile by the prosecution.

23.The evidence of PW.1, PW.4, PW.6 and Ex.P.10 shows about the death of

Venkata Laxmamma but whether it occurred in an accident is not proved by the prosecution or the identity of accused in being driver of accused is also not proved by the prosecution.

The prosecution failed to prove the offence U/sec. 304-A of IPC against the accused and thereby accused is entitled for acquittal.

24. Hence, under these circumstances and by virtue of above discussion and considering the facts and circumstances of the case, the prosecution could also not establish that accused by rash and negligent act caused the accident. Hence, the accused is entitled for acquittal.

25. In the result, the accused is found not guilty for offence punishable Under

Section 304-A of Indian Penal Code. Therefore accused is acquitted Under Section 255 (1)

Criminal Procedure Code. The bail bonds and sureties of the accused shall be in force for a period of 6 months Under Section 437(A) of Criminal Procedure Code.

Dictated to the Personal Assistant, transcribed by her, corrected on official laptop

and pronounced by me in open court, this the 22nd day of December, 2018.

Sd/-K.Asha Rani

Judicial Magistrate of I Class,

Kurnool.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1:C.Muniswamy P.W.2: B.Nagaraju P.W.3: C.Venkataramudu -None- P.W.4: P.Narasimhulu P.W.5: K.Kalyan Babu PW.6: M.Nagalaxmaiah

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P.1 : Signature of PW.1 Complaint dt.19.09.2016 Ex.P.2 : Sec.161 Cr.P.C. statement of PW.1. Ex.P.3 : Sec.161 Cr.P.C. statement of PW.2. Ex.P.4 : Sec.161 Cr.P.C. statement of PW.3. Ex.P.5: Inquest report Ex.P.6: Sec.161 Cr.P.C. statement of PW.5. Ex.P.7: FIR Ex.P.8:Complaint Ex.P.9: Rough sketch. Ex.P.10: Post mortem examination report. Ex.P.11: MVI report -Nil-

Sd/-K.A.R.

JMFC, KNL.

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CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS :: KURNOOL

CALENDAR CASE NO.610/2017

Date of offence.:19.09.2016

Date of complaint.:19.09.2016

Date of apprehension of accused:--

Date of release on bail.:--

Date of commencement of trial.:28.11.2018

Date of close of trial.:18.12.2018

Date of sentence or order.:22.12.2018

Explanation.: ----

Complainant: State:Represented by the Sub Inspector of Police, Kurnool IV town Police Station.

S.NoNameFather’s nameReligionOccupatioResidenceAge n

1.Maddela RamuM.AyyaswamyHinduH.No.81/24, 39 Car driverShareen Ngar, yrs Kallur Mandal, Kurnool town .

Offence. : Causing death by rash or negligent Act,

Section of Law : 304-A IPC. Finding. : Found not guilty.

Sentence or order: In the result, the accused is found not guilty for offence punishable

Under Section 304-A of Indian Penal Code. Therefore accused is acquitted Under Section 255 (1) Criminal Procedure Code. The bail bonds and sureties of the accused shall be in force for a period of 6 months Under Section 437(A) of Criminal Procedure Code.

Sd/-K.Asha Rani

Judicial Magistrate of I Class,

Kurnool.

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum-Prl.Asst. Sessions Judge, Kurnool.